Appeal No. 2001-1700 Page 3
Application No. 09/160,964
Peng et al. (Peng) 5,731,243 Mar. 24,
1998
(filed Sep. 05, 1995)
Claims 1-7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Peng in view of Farnworth.1
We refer to the brief and to the answer for the opposing
viewpoints expressed by appellants and by the examiner
concerning the above-noted rejection.
OPINION
1The examiner refers to several alleged well known
features at page 3 of the final rejection and pages 5 and 6 of
the answer. The answer, for the first time, also refers to
page 3, lines 10-19 of the specification as representing
admitted prior art pertaining to forming rounded edges by
isotropic etching in an apparent attempt to support at least
one of the alleged well known features. That portion of the
specification discusses alleged features of U.S. Patent No.
5,246,883 of Lin et al. We do not consider that patent (U.S.
Patent No. 5,246,883) or the so called admitted prior art
referenced in the answer as being before us in our
consideration of the examiner’s rejection (see answer, pages 2
and 3). This is so since the examiner’s stated rejection
(answer, page 2) does not list U.S. Patent No. 5,246,883 and
alleged admitted prior art at page 3, lines 10-19 of the
specification as part of the evidence being relied upon. See
In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3
(CCPA 1970). Consequently, those references have not been
considered in reaching our decision.
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